Rehabilitation in criminal proceedings: grounds and procedure

Who has the right to rehabilitation and in what case?

A complete list of persons and situations is set out in Art. 133 of the Code of Criminal Procedure of the Russian Federation “Grounds for the emergence of the right to rehabilitation.”

This right is vested in:

Acquitted defendants.
Defendants against whom criminal prosecution was terminated by the court due to the prosecutor's refusal to charge.
Suspects (accused), in respect of whom the prosecution was terminated on exonerating grounds:

no crime event;
there is no corpus delicti;
there is no statement from the victim when it is required to initiate a criminal case;
there is no conclusion about the presence of signs of a crime or there is no consent to initiate proceedings against a State Duma deputy, a Federation Council senator or a judge, respectively;
non-involvement in the commission of a crime has been established;
there is a verdict, a decision to dismiss the case on the same charge, or a decision to refuse to initiate a case on the same grounds.

Convicts in respect of whom the conviction has been fully or partially reversed, and the criminal case has been terminated due to non-involvement in the crime or on the grounds provided for in paragraphs. 1-6 hours 1 tbsp. 24 Code of Criminal Procedure of the Russian Federation.
Persons to whom compulsory medical measures were applied, and subsequently the court decision on such measures was declared illegal or unfounded.
Persons who, as part of criminal proceedings, were unlawfully subjected to any coercive measures (detention as a suspect, all preventive measures, imposition of an obligation to appear, arrest, removal from office, seizure of property and monetary penalties).

Suspects, accused and convicted persons in respect of whom criminal prosecution has been terminated or the conviction has been canceled/changed due to an amnesty, expiration of the statute of limitations for criminal prosecution or not reaching the age of criminal responsibility do not have the right to rehabilitation. This rule is established by Part 4 of Art. 133 of the Code of Criminal Procedure of the Russian Federation and applies to all listed cases.

As you can see, in most cases the right to rehabilitation arises if a person was illegally or unreasonably subjected to criminal prosecution - criminal prosecution was initiated against him or he was convicted. This includes suspects, accused, defendants and convicted persons. The sixth point in the above list gives the right to rehabilitation to other persons. In particular, witnesses and victims brought in illegally or unreasonably may also receive the right to rehabilitation.

As a rule, the right to rehabilitation arises by force of law and does not require a special decision. For example, the defendant receives such a right upon the fact of an acquittal. At the same time, the law (Article 134 of the Code of Criminal Procedure of the Russian Federation) obliges the investigator, interrogating officer and the court to officially recognize the right to rehabilitation when making a decision to terminate the prosecution (case), cancel or change the sentence. Another duty is to communicate and explain the right to rehabilitation to the person concerned. If the person subject to rehabilitation has died, his heirs, close relatives, other relatives or dependents are required to notify.

In some cases, a prerequisite for the emergence of the right to rehabilitation is the recognition of the actions or decisions of the investigator (inquiry officer) as illegal or unfounded. If we take the same bringing of a witness as an example, then in order to obtain the right to rehabilitation it is necessary that the bringing, as a coercive measure, be recognized as illegal or unfounded. A decision on this matter is made mainly within the framework of appealing the actions (decisions) of the investigator or interrogating officer.

If there are grounds for the right to rehabilitation, all issues related to restoration of rights and payment of compensation are resolved within the framework of criminal proceedings. If there are no grounds listed in Art. 133 of the Code of Criminal Procedure of the Russian Federation, but a person believes that his rights have been violated, he can file a civil claim, including for the recovery of property damage or compensation for moral damage.

Rehabilitation in criminal proceedings

Rehabilitation consists of two actions: 1) the issuance of a procedural act on rehabilitation and 2) a set of measures aimed at compensating for the harm caused by illegal criminal prosecution. This includes compensation for property damage, compensation for moral damage, and restoration of other rights of the rehabilitated person.

Regardless of the guilt of investigators, inquiry officers, prosecutors, or the court in the illegal criminal prosecution of a person, the harm caused to a citizen is compensated by the state in full.

Decisions on rehabilitation can be made by the court of first instance, as well as in appeal and cassation proceedings.

Despite the accuracy and specificity of the rules governing rehabilitation issues in criminal proceedings, in the practice of their application questions arise, the answers to which were given by the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Plenum) in Resolution No. 17 dated November 29, 2011 (as amended on April 2, 2013 ) “On the practice of application by courts of the norms of Chapter 18 of the Code of Criminal Procedure of the Russian Federation, regulating rehabilitation in criminal proceedings.”

Thus, according to the provisions of paragraph 2 of part 2 of Article 133 of the Code of Criminal Procedure of the Russian Federation, a defendant whose criminal prosecution has been terminated due to the refusal of the state prosecutor to charge has the right to rehabilitation.

What if the case is dismissed by the court on rehabilitative grounds, provided for, but not due to the refusal of the state prosecutor?

The Plenum explained that not only persons are subject to rehabilitation in connection with the termination of a criminal case due to the refusal of charges, but also persons in respect of whom the court has issued a decision (ruling) to terminate a criminal case (criminal prosecution) on the above grounds, provided for in Article 24 , 27 Code of Criminal Procedure of the Russian Federation.

Are persons subject to rehabilitation in case of acquittal or dismissal of the case under certain articles, that is, regarding the charges?

Clause 4 of Part 2 of Article 133 of the Code of Criminal Procedure of the Russian Federation contains instructions on partial rehabilitation only when a court conviction that has entered into legal force is overturned, that is, at the cassation stage.

The Plenum explained that the right to rehabilitation has the right not only to a person against whom criminal prosecution was terminated on the grounds provided for in Part 2 of Article 133 of the Criminal Procedure Code of the Russian Federation in the case as a whole, but also to a person against whom criminal prosecution was terminated on rehabilitative grounds in part of the presented independent accusation against him (for example, when a criminal case is terminated for lack of corpus delicti under Article 105 of the Criminal Code of the Russian Federation, when charged with murder and theft).

In accordance with the requirements of Article 134 of the Code of Criminal Procedure of the Russian Federation, court decisions on the acquittal and termination of criminal cases on rehabilitative grounds must indicate the recognition of the right to rehabilitation and send a notice explaining the procedure for compensation for harm associated with illegal criminal prosecution, established by Art. 133, 135, 136,138,139 of the Code of Criminal Procedure which, in particular, must indicate what harm is compensated during rehabilitation, as well as the procedure and timing for applying for compensation.

The absence in a sentence, resolution, determination of an indication of recognition of a person's right to rehabilitation does not serve as a basis for refusal of rehabilitation.

According to Part 1 of Article 136 of the Code of Criminal Procedure, the prosecutor, on behalf of the state, brings an official apology to the rehabilitated person for the harm caused to him.

Should an apology be given in private rehabilitation?

Based on the explanation of the Plenum, in the case of partial rehabilitation, the same consequences occur as in the case of full rehabilitation.

Does the court have the right to assign the obligation to make an official apology to the rehabilitated person to a specific prosecutor?

According to the resolution of the Plenum, the court is not vested with such a right. Article 136 of the Code of Criminal Procedure of the Russian Federation does not contain instructions that the court, when recognizing the right of a convicted person to rehabilitation, must oblige the prosecutor to apologize, since such an obligation is assigned to the prosecutor by law.

At the same time, if the prosecutor fails to fulfill the obligation imposed on him by law to apologize, his inaction, according to the law, can be appealed to the court.
Deputy Prosecutor of the Vokhomsky District,
1st Class Lawyer N.N. Chicherin

What payments are due to a rehabilitated person?

Rehabilitation in criminal cases, according to Articles 135 and 136 of the Code of Criminal Procedure of the Russian Federation, provides for two categories of payments: compensation for property and moral damage.
The following are paid as compensation for property damage:

Losses on wages, pensions, benefits and other payments (income) not received due to criminal prosecution or the use of coercive measures.
The value of the confiscated property.
Fines and costs collected by court verdict.
Legal assistance costs.
Other expenses associated with criminal prosecution and elimination of its consequences.

The stated requirements are indexed according to the level of inflation.

Requirements may be submitted by the rehabilitated person or his legal representative. Time limits – the limitation period established by the Civil Code of the Russian Federation. It is considered from the moment of receipt of the decision defining the right to rehabilitation, and (or) notification of the existence of such a right.

Moral damage, unlike property damage, is compensated through civil proceedings. That is, the claim will have to be filed separately. In criminal proceedings, moral damages are “compensated” by the prosecutor making a formal apology. If information about criminal prosecution became public through the media, then information about rehabilitation should also be published in the media. At the request of the rehabilitated person or, if he has died, his relatives, information about rehabilitation must be sent to the citizen’s place of work (study) and residence.

All payments are made from the state budget. In order to award and receive payments, it is not necessary to prove the guilt of the investigation (inquiry) and (or) court - the money is paid regardless of who exactly is to blame and for what.

If the court refuses any payments (type, amount), the applicant can apply again, however, only in a civil manner. As an option, you can appeal the court’s decision to refuse to satisfy the claim in a certain part. The appeal takes place according to the rules of criminal procedure.

Reinstatement of rights

In addition to making monetary payments, the rehabilitated person must be restored to those rights that he was deprived of due to criminal prosecution. In particular, Art. 138 of the Code of Criminal Procedure of the Russian Federation names among such rights labor, pension and housing. In addition, all state awards must be returned, titles and class ranks that the citizen was deprived of must be restored.

The issue of restoration of rights is resolved within the framework of criminal proceedings according to the rules established to resolve issues related to the execution of the sentence.

Procedural aspects of rehabilitation

Consideration of claims for monetary payments and restoration of rights is the competence of the court. When making decisions, the courts are guided by Chapter 18 of the Code of Criminal Procedure of the Russian Federation and Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2011 No. 17 “On the practice of application by courts of the norms of Chapter 18 of the Criminal Procedure Code of the Russian Federation, regulating rehabilitation in criminal proceedings.”

As already mentioned, there are three possible categories of requirements:

On payment of monetary compensation for property damage.
On compensation for moral damage.
About reinstatement of rights.

For these categories of claims, a slightly different procedural procedure for their consideration has been established.

Compensation for property damage:

To receive monetary compensation, you must file a claim.
The claim is filed depending on the situation:

to the court that issued an acquittal or a decision to terminate the prosecution (case);
to the court, which is geographically located at the location of the body that terminated the case (prosecution) or canceled/changed the illegal or unfounded decision;
to the court at the place of residence of the rehabilitated person;
to the court that passed the guilty verdict or is located at the place of residence of the rehabilitated person - if the verdict is overturned/changed by a higher court.

The claim must substantiate the stated monetary claims, both by type and amount. It is advisable to make a detailed calculation and attach to the claim documentary evidence of expenses, monetary losses in income, and the value of confiscated property. Recognition of claims as lawful and justified is the competence of the court.
Cases are considered within 1 month from the date of receipt of the claim.
The rehabilitated person has the right to involve his lawyer in the process.
The prosecutor may participate in the meeting.

Claims for compensation for moral damage are filed in civil proceedings. Therefore, you need to be guided by Art. 151 of the Civil Code of the Russian Federation and the requirements for filing claims established by the Civil Procedure Code of the Russian Federation.

A claim for reinstatement of rights is usually filed in court along with a claim for recovery of property damage. But you can do this separately.

Collection of expenses for a representative in a “rehabilitation” case

It is always joyful when, after a long competition with the prosecution, criminal prosecution against a client is terminated, and it is even more pleasant when the provisions of Ch. 18 of the Code of Criminal Procedure of the Russian Federation, which gives every illegally persecuted person the right to compensation for property damage caused and compensation for moral damage.

For more than 4 years, my client, who performed management functions in a commercial organization - a large enterprise that was declared insolvent, was persecuted on charges of deliberate bankruptcy.

A criminal case that was initiated on the grounds of a crime under Art. 315 of the Criminal Code of the Russian Federation, has grown into a large-scale investigation based on the elements of a crime under Art. 196 of the Criminal Code of the Russian Federation, first in the Main Investigation Department of the Main Directorate of the Ministry of Internal Affairs of Russia for the Chelyabinsk Region, then in the Directorate of the Ministry of Internal Affairs of Russia for the Ural Federal District (now disbanded) and ended in termination after an investigation in the Investigative Department of the Investigative Committee of the Russian Federation for the Chelyabinsk Region.

The case gained resonance, which allowed the prosecutor's office and, first of all, the Office of the Prosecutor General for the Urals Federal District to cancel decisions to terminate the criminal case five times and resume the investigation despite all the explanations of the Constitutional Court of the Russian Federation. I will quote, for example, from the definitions of December 27, 2002 No. 300-O, of October 22, 2003 No. 385-O: from the constitutional provisions it follows that when resolving issues related to the resumption of terminated criminal cases, one must proceed from the need to ensure and protection of both the interests of justice, the rights and freedoms of victims of crime, and the rights and legitimate interests of persons brought to criminal liability and considered innocent until their guilt is proven in the manner prescribed by law and established by a court verdict that has entered into legal force (Part 1 of Article 49 of the Constitution of the Russian Federation), and the inadmissibility of maintaining for a person against whom the case was terminated a constant threat of criminal prosecution, and therefore a restriction of his rights and freedoms. This also presupposes the inadmissibility of repeated reopening of a closed criminal case on the same grounds (in particular, due to the incompleteness of the investigation).

The main result is the termination of the criminal case and prosecution on exonerating grounds, namely due to the lack of corpus delicti in the actions of the principal.

In order to exercise the right to rehabilitation, an application was submitted for the recovery of property damage in the form of amounts spent on legal assistance, which is a completely trivial procedure regulated by the provisions of Art. 133, 135 Code of Criminal Procedure of the Russian Federation.

And then the fun begins... The prosecutor's office and representatives of the Ministry of Finance of the Russian Federation (represented by the Treasury) begin to do everything in their power to show that some of the work on providing legal assistance is unnecessary, that its cost is inflated and, therefore, the amount of damage is unreasonable.

At the court hearing, which did not come as a surprise, a representative of the Treasury asked to completely refuse compensation for losses, the prosecutor demanded a proportionate reduction in the cost of services paid to defense lawyers on the grounds that it was overpriced compared to the market, noted that part of the legal assistance was unnecessary, too much was spent on work a lot of time (for example, studying primary accounting documents, agreements of a bankrupt enterprise, etc.), some of which are not at all related to legal assistance to my client.

At these moments, you just want to answer: “Whose cow would moo...”, but, following the requirements of ethics and professionalism, you begin to scrupulously explain what actions of the lawyer were necessary, pointing out that if not for the five reversals of decisions to terminate the criminal case by the prosecutor’s office itself, then the principal would not have suffered any negative consequences and, accordingly, damage in the amount of the amount recovered.

Contrary to the opponents' arguments, the court supported the defenders and not only recovered the amounts paid to the defendant for the legal services provided, but also did not forget to apply the provisions of Part 4 of Art. 135 of the Code of Criminal Procedure of the Russian Federation and indexed the main amount of damage, increasing it by a quarter of times, which made it possible to recover the stated claims from the treasury in full.

The approaches of judicial practice to the recovery of damages for rehabilitation are ambiguous, and, first of all, regarding the question: is it necessary and possible to reduce the amounts spent on the services of a lawyer?

The collection of costs in the form of expenses for the services of a representative in civil disputes, where dispositive principles are strong, has been more or less worked out, but with rehabilitation in criminal cases, everything is not so simple.

The source of the problems lies in the provisions of Part 1 of Art. 133 of the Code of Criminal Procedure of the Russian Federation, according to which harm caused to a citizen as a result of criminal prosecution is compensated by the state in full, regardless of the guilt of the body of inquiry, the inquiry officer, the investigator, the prosecutor and the court. It would seem that everything is clear, but the “treasury will not become poor” approach does not work here.

Courts in their decisions often refer to the legal position of the Constitutional Court of the Russian Federation, set out in the Determination of April 2, 2015 No. 708-O, that the provisions of paragraphs 4 and 5 of Part 1 of Art. 135 of the Criminal Procedure Code of the Russian Federation obliges the court to include in the scope of compensation for property damage caused to a rehabilitated person as a result of his illegal criminal prosecution, all amounts actually paid by him for the provision of legal assistance, as well as the costs actually incurred by him for reimbursement of expenses associated with the consideration of issues rehabilitation.

From the appeal ruling of the judicial panel for criminal cases of the Vologda Regional Court dated April 25, 2013 in case No. 22-841/2013: “The court had no grounds for reducing the amounts collected, and the references of the representative of the Ministry of Finance of the Russian Federation in the appeal to the principles of reasonableness and fairness in this case are illegal. According to Art. 53 of the Constitution of the Russian Federation, everyone has the right to compensation by the state for damage caused by illegal actions (or inaction) of public authorities or their officials, and according to Part 1 of Art. 133 of the Code of Criminal Procedure of the Russian Federation, harm caused to a citizen as a result of criminal prosecution is compensated by the state in full, regardless of the guilt of the body of inquiry, the inquiry officer, the investigator, the prosecutor and the court.”

In other cases, without reducing the amount of compensation, the court still assesses the reasonableness of the costs. Thus, in the appeal ruling of the Ulyanovsk Regional Court dated March 20, 2017 in case No. 22-571/2017, it was noted that, contrary to the arguments of the complaint, the expenses incurred by the rehabilitated were confirmed, including with documents. The amount of compensation is reasonable and cannot be considered excessive taking into account the time spent by the lawyer on participation in the courts of first and appellate instances, the amount of work he performed and the complexity of the criminal case in which Z. was prosecuted. Under such circumstances, the court of first instance reasonably decided to reimburse her for the amounts she paid for legal assistance. The arguments presented in the complaint that this amount was inflated are also unfounded, since the amount of compensation was determined based on the case materials and the actual expenses incurred directly related to the implementation of the defense, taking into account the full rehabilitation of Zh., and also taking into account the provisions of Part. 4 tbsp. 135 of the Code of Criminal Procedure of the Russian Federation, according to which payments for rehabilitation are made taking into account the level of inflation. At the same time, the cost of legal services of a defender does not contradict the cost of similar services prevailing in the region.

From the appeal ruling of the Kemerovo Regional Court dated July 21, 2022 in case No. 22-3137/2017: “The court’s conclusion on the amount of costs incurred is based not only on the above receipts, but also on copies of the lawyer’s books of income and expenses, which reflect the receipt from S. funds for defense in a criminal case on receipts dated February 12, 2013, June 6, 2013, January 22, 2014, December 6, 2014, as well as copies of K.’s tax returns on the estimated income of an individual and receipts , confirming the fact that lawyer K. paid personal income tax.”

There are many similar solutions, and this is good news, but at the same time there is another practice:

in the resolution of the Pskov City Court dated September 14, 2010 in case No. 4/17-210/2011 it is stated: the court excluded from the stated claims 899,760 rubles, which are not actual services provided and during the consideration of the case by the cassation court, in which the lawyer did not participate);
in the appeal ruling of the Novosibirsk Regional Court dated March 15, 2022 in case No. 22-927/2017 it was noted: as can be seen from the materials presented to the court, within the framework of the concluded agreement, lawyer R., during the criminal proceedings, participated in one investigative action - the interrogation of suspect O ., which lasted 15 minutes (O., taking advantage of the right provided for in Article 51 of the Constitution of the Russian Federation, refused to testify), and also made one written petition addressed to the Main Investigation Department of the Main Directorate of the Ministry of Internal Affairs of Russia for the Novosibirsk Region, for a copy of the decision to cancel the resolution about the termination of the criminal case and information about which investigator is in charge of the criminal case and what period is set for conducting an additional investigation. In making a decision on the applicant’s request, the court did not take into account that the expenses indicated by O. cannot be considered to correspond to the criteria of reasonableness and proportionality, which constitute the general legal principle of fairness and imply, among other things, the correspondence between actions and their social consequences, between work and its payment, harm and its compensation, as well as corresponding to the prevailing market values.

As established by the court of appeal, in the territory of the Tomsk region (R. is in the register of lawyers of the Chamber of Lawyers of the Tomsk Region), for the period of concluding an agreement with O., the average market prices for the provision of legal services for all lawyers, without exception, are determined, which are contained in the Recommended minimum rates for some types of legal assistance provided by lawyers of the Chamber of Lawyers of the Tomsk Region, approved by the decision of the Council of the Chamber of Lawyers of the Tomsk Region dated October 28, 2010. In accordance with the specified minimum rates, the fee for the participation of a lawyer as a defense attorney during the preliminary investigation in complex cases (taking into account the jurisdiction, volume case, duration) is at least 20,000 rubles.

It must be emphasized that this approach does not take into account that the document cited indicates the minimum recommended amounts, and the situation makes us think that standardization of fee policies in legal practice (in the presence of the best intentions and goals) can play a cruel joke.

Let's return to negative practice - the premise of its characteristic positions is hidden in the Decree of the Constitutional Court of the Russian Federation of April 2, 2015 No. 708-O, which states: “If the court establishes (including on the basis of documents, expert opinions, other specialists and others evidence) that the declared amount of expenses incurred is not due to the actual cost of legal services within the limits of the market values that existed at the time of provision, he awards for compensation only the amount that was - taking into account the totality of all the circumstances of the case, the volume of work, the qualifications of the subjects of rendering legal services, and also the rules on the interpretation of doubts in favor of the rehabilitated person - objectively necessary and sufficient in these specific conditions to pay for legal assistance itself.”

There is no way to put it more “evaluatively”. The point is that the consideration of applications for rehabilitation is not a formal procedure, but a full-fledged trial, where you will have to disclose information about the lawyer’s proceedings, and open the attorney-client privilege, and test the strength of recording the time spent on the project, professional qualifications, and the ability to explain the content of a qualified defense , which, despite the constitutional presumption of this right of the rehabilitated, in such processes becomes only a subject of assessment.

Judicial practice in rehabilitation cases

The main issues of consideration of cases on the payment of compensation and restoration of rehabilitated citizens’ rights are set out in the above-mentioned Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 29, 2011 No. 17.

Let's highlight the most important points:

The right to rehabilitation, as a rule, arises among suspects, accused, defendants and convicts - persons who have been subjected to criminal prosecution illegally or unreasonably. At the same time, persons in a different procedural status, in particular witnesses and victims, can exercise the right to rehabilitation. But only on the condition that coercive measures were applied to them that were recognized as illegal or unfounded.
To qualify for rehabilitation, it is important that the harassment or coercion be unlawful/unjustified. That is why such a right cannot be recognized for persons who are exempt from liability under an amnesty or other non-rehabilitative grounds.
Persons who are not expressly listed in Art. 133 of the Code of Criminal Procedure of the Russian Federation, but to whom harm was caused by unlawful or unjustified criminal prosecution or coercive measures, also have the right to demand compensation for harm. This also applies to legal entities. And in these cases, the procedure established by Chapter 18 of the Code of Criminal Procedure of the Russian Federation should be applied, and not another procedural law.
Refusal to satisfy claims submitted in accordance with Chapter 18 of the Code of Criminal Procedure of the Russian Federation does not deprive the right to file similar claims in civil proceedings.
The damage is compensated at the expense of the state treasury; the issue of payments is directly resolved through the regional treasury, whose representative will act in court on behalf of the defendant. The defendant in the claims is the Ministry of Finance of the Russian Federation.
The plaintiff must prove property damage (types of losses, expenses, value of property, amounts claimed). Its task is to justify the stated requirements and amounts. The court is obliged to provide assistance to the rehabilitated person in collecting the necessary information and documents. To do this, a corresponding request must be submitted. But if the court considers that the materials presented are not enough, it must itself take measures to collect the missing information and documents.
Expenses for legal assistance are reimbursed in full and regardless of the number of lawyers (attorneys). The actual expenses incurred, supported by documents, are subject to recovery.
If the rehabilitated person dies, the right to file a claim passes in full to the heirs. An exception is claims for monetary compensation for moral damage. Such a claim can only be filed by the rehabilitated citizen himself.

In practice, cases of compensation and restoration of rights are considered as quickly and simplified as possible. Disputes arise rarely and relate mainly to situations where clearly large amounts are claimed that do not correspond to the damage caused.

My own lawyer

In accordance with clause 2, part 2, art. 133 of the Code of Criminal Procedure of the Russian Federation, if the state prosecutor refuses to charge, the defendant has the right to rehabilitation. This rule primarily regulates cases of complete refusal of charges.

In practice, it often happens that the state prosecutor refuses part of the charges. In such cases, the question arises: does the defendant in such cases have the right to rehabilitation? When making a decision to terminate a criminal case regarding charges on these grounds, courts, as a rule, do not indicate the defendant’s right to rehabilitation. State prosecutors also say nothing about this right in their statements.

At the same time, from the meaning of the above norm, an unequivocal answer follows that such rehabilitation is permissible. And, when deciding even to partially withdraw charges, the state prosecutor must assume the possibility of the convicted person filing an application for partial rehabilitation.

Clause 4, Part 2 states that a convicted person has the right to rehabilitation in the event of either a complete or partial reversal of a court verdict that has entered into force or in the case of termination of a case on rehabilitative grounds.

The Constitutional Court of the Russian Federation in its definitions (dated 02/16/2006 No. 19-O9, dated 06/20/2006 No. 270-O10, dated 07/18/2006 No. 279-O11, dated 02/19/2009 No. 109-O-O12) also consistently pointed to this right . The Supreme Court of the Russian Federation adheres to a similar position in its definitions.

Thus, the public prosecutor’s complete or partial refusal of the charge entails full or partial exoneration.

However, the norms of Ch. 18 of the Code of Criminal Procedure of the Russian Federation do not answer the question of whether damages should be compensated to a convicted person whose actions have been reclassified or from whose charge qualifying features have been excluded, erroneously imputed articles with an ideal totality of crimes, or in respect of whom other decisions have been made that reduce the scope of the charge, but do not exclude it .

This question is answered to a certain extent by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 17 dated November 29, 2011

Paragraph 4 of this resolution states that suspects, accused persons, convicts whose actions have been reclassified or from whose charges qualifying features have been excluded, erroneously imputed articles with an ideal totality of crimes, or in respect of whom other decisions have been made that reduce the scope of the charges, but not excluding it.

But in the same paragraph of the resolution, the second paragraph states that if in such cases the defendant was harmed, for example, when a preventive measure in the form of detention was canceled in connection with the reclassification of the actions of the perpetrator from Part 1 of Art. 111 of the Criminal Code of the Russian Federation on Part 1 of Art. 115 of the Criminal Code of the Russian Federation, according to which this preventive measure could not be applied, the right to rehabilitation is not excluded.

It turns out that the decision of the prosecutor not only to drop the charge, but also to change the charge in some cases also entails the emergence of the right to rehabilitation for the person subject to criminal prosecution. Refusal of one of the charges also gives the defendant the right to rehabilitation.

Directive of the General Prosecutor's Office of the Russian Federation dated July 3, 2013 No. 267/12, dedicated to issues of rehabilitation (Part 1 of Article 136 of the Code of Criminal Procedure), begins with a requirement for prosecutors to immediately figure out how an acquittal or dismissal of the case on a rehabilitating basis could have occurred. Only in the absence of reasons for canceling the exonerating decisions of the investigation or judicial acts is it possible to make a written apology.

Therefore, when the criminal prosecution is terminated during the investigation, it is better not to raise the issue of rehabilitation by prosecutors until the end of the first year of the three allotted for this. A year later, according to Part 1.1 of Art. 214 of the Code of Criminal Procedure, it is possible to cancel a pre-trial decision that ends with an explanation of the right to rehabilitation only in court, and it is generally impossible to cancel an acquittal. Today, a person must seek his own rehabilitation personally. A citizen is forced to enter into at least two lawsuits. He will be awarded compensation for moral damage in civil law, and will be charged monetary compensation and restored to lost rights in criminal law. The prosecutor taking part in these processes is supposedly not the applicant’s opponent, but always sits opposite the acquitted person, who is actually in the dock.